10.1 Terminating the Lease Before attempting this scenario, you should read: . The Example Lease '[Rich Text Format] LLB301 sample lease v2' on QUT Readings . Wallace, Weir & McCrimmon [14.1090-14.1150]; [14.1200- 14.1220] . Property Law Act 1974 (Qld) s 124, 129, 357 . Shevill v Builders Licensing Board (1982) CLR 620 . Progressive Mailing House v Tabali (1985) 157 CLR 17 Refer to the scenario from the week 10 Tutorial. Assume Property Investor does not sell the building. Over the next 6 months a number of problems arise with tenants and Property Investor is seeking your advice about the steps required to obtain payment or terminate the leases. a. Beans to Go has a 3 year lease which has expired on 1 December last year. There is no holding over provision in the lease (clause 17.3 of the Example lease was deleted) but Beans to Go has remained in possession and continued to pay rent on a monthly basis until March which Property Investor has accepted. No rent has been paid for the last 3 months. Property Investor has heard rumours that Beans to Go is secretly negotiating a new lease at premises down the road and will be leaving in the next month. Property Investor is in the process of negotiating a replacement tenant who has agreed to lease the premises provided they can take immediate possession. Can Development Ltd eject Beans to Go immediately? The first step is to define what type of lease is in existence. Here, there was a 3-year, fixed term and registered lease. However, this has now expired. On the other hand, the tenant has remained in possession and was paying rent. This may mean that there is a tenancy with no written agreement as to the duration. A holding over clause would normally provide for a monthly tenancy. However, here there is none. Instead, there is a tenancy as provided by possession and the payment of rent, however, there is no agreement as to its duration. This means that s 129 of the PLA will apply. S 129 applies when there is a tenancy with no legally enforceable agreement as to its duration. This will benefit the landlord as a s 129 lease can be terminated at any point with 30 days notice. They do not have to demonstrate that there has been a breach of the lease agreement etc. However, PI wants the premises immediately. In order to terminate immediately, it would have to be done under the
general law. The normal contractual principles apply. In order to do that, a breach of an essential term or repudiation must be shown. Repudiation is unlikely to be shown by B2G wanting to move. The failure to pay rent may be a breach of an essential term. In deciding whether it is an essential term, the court may have regard to the fact if it was set out to be an essential term in the original 3 year lease. However, there is no